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Another Potential use for USCIS form I-924: How about as an EXEMPLAR I-829 for materially changed projects?

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As many RCs approach their 1st wave of I-829 filings..... Are you prepared?

As many RCs approach their 1st wave of I-829 filings..... Are you prepared?

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  • 1. Contact: joseph.whalen774@gmail.com (716) 604-4233 or (716) 768-6506 Page 1 Another Potential Use for USCIS Form I-924: How About as an Exemplar I-829 for Materially Changed Projects? By Joseph P. Whalen (July 25, 2014) When reading about some of the difficulties that some Regional Centers may be having as more and more come closer and closer to their first wave of I-829 filings, I gave that situation some more thought too. In the past I have written about the need to stay within the scope of one’s approved Regional Center parameters and not to make material changes. However, since I wrote about that, USCIS has backed off their former hardliner policies and will readily accept a project that is materially changed and that ventures outside the previously approved parameters, to a point.1 By that I mean that even after the I-526s have been approved and the ground has broken, IF for some reason a project does materially change, THEN all is not lost for the EB-5 investors. USCIS is now much more willing to accept the fact that the lifting of conditions is ultimately a matter of proving the end results rather than laboriously staying on course in accordance with the original plans submitted with the I-526. The lifting of conditions is controlled by statute. INA § 216A [8 U.S.C. § 1186b] Conditional permanent resident status for certain alien entrepreneurs, spouses, and children. * * * * * (d) Details of petition and interview (1) Contents of petition Each petition under subsection (c)(1)(A) of this section shall contain facts and information demonstrating that the alien— (A)(i) invested, or is actively in the process of investing, the requisite capital; and (ii) sustained the actions described in clause (i) throughout the period of the alien's residence in the United States; and (B) is otherwise conforming to the requirements of section 203(b)(5) [8 U.S.C. § 1153(b)(5)] of this title. 1 While an altered project focus as to industry may be found acceptable in the I-829 stage, I highly doubt that USCIS would accept a hugely distant geographic diversion. The geographic scope can only be stretched just so far and must make some sort of sense. IF the geographic area is so far away, THEN USCIS might say that it should be a new Regional Center all together! A “Hollywood, CA” based RC should not try to sponsor a project in “Hollywood, FL”. You know what I mean? Don’t be ridiculous about it!
  • 2. Contact: joseph.whalen774@gmail.com (716) 604-4233 or (716) 768-6506 Page 2 USCIS Form I-829 is supposed to be filed within the 90 day period prior to the two-year anniversary of the conditional status. Simply put, that period begins 90 days before the expiration date on the permanent resident card. I firmly believe that no Immigration Judge (IJ) wants to have to try to deal with an EB-5 case where the applicant is attempting to submit new evidence of having met the requirements for the lifting of conditions. I am confident in that belief due to the complexity of the issues but even more so by the way that both the statute and regulations so easily allow a case to be handed back from the IJ to USCIS even after the creation of DHS. INA § 216A [8 U.S.C. § 1186b] Conditional permanent resident status for certain alien entrepreneurs, spouses, and children. * * * * * (d) Details of petition and interview * * * * * (2) Period for filing petition (A) 90-day period before second anniversary Except as provided in subparagraph (B), the petition under subsection (c)(1)(A) of this section must be filed during the 90-day period before the second anniversary of the alien's lawful admission for permanent residence. (B) [Late] petitions for good cause Such a petition may be considered if filed after such date, but only if the alien establishes to the satisfaction of …[USCIS]… good cause and extenuating circumstances for failure to file the petition during the period described in subparagraph (A). (C) Filing of petitions during removal In the case of an alien who is the subject of removal hearings as a result of failure to file a petition on a timely basis in accordance with subparagraph (A), the Attorney General2 may stay such removal proceedings against an alien pending the filing of the petition under subparagraph (B). See also 8 CFR § 1216.6 (a)(5) which gives ample opportunity for the IJ to give the case back to USCIS. That regulation states, in pertinent part: …. [T]he alien may request a review of the determination during deportation proceedings…… The director may deem the petition to have been filed prior to the second anniversary of the alien's obtaining conditional permanent resident status and accept and consider a late petition …….. If the late petition is filed prior to jurisdiction vesting with the immigration judge in deportation proceedings and the director excuses the late filing and approves the petition, he or she shall restore the alien's permanent resident status, remove the conditional basis of such status, and cancel any outstanding order to show cause in accordance with § 242.7 of 8 CFR chapter I. If the petition is not 2 An IJ may easily return a case to USCIS or USCIS may simply choose to delay the issuance of, or cancel, an NTA and accept a late I-829 or even a new I-526.
  • 3. Contact: joseph.whalen774@gmail.com (716) 604-4233 or (716) 768-6506 Page 3 filed until after jurisdiction vests with the immigration judge, the immigration judge may terminate the matter upon joint motion by the alien and the Service. And now for something completely different! Do you think that USCIS has taken enough black-eyes over mindless and meaningless rigidity that it is finally open-minded enough to actually allow something that would not only be a great improvement to its customers but to itself as well? I am willing to at least entertain the thought. I think that IPO may be willing to seriously consider this idea at the moment. They are currently deeply reviewing the EB-5 regulations, actively reviewing the great many suggestions put forth, and seem much more open to improving things as they re-write or “update” the EB-5 implementing regulations. I envision a couple of very obvious situations where an EXEMPLAR I-829 filed as an “Amendment”3 on form I-924 would be most useful. First of all, in a situation as described above, where there has been a significant change to the plans originally put forth, it would be best to try to tackle the situation head-on in one concerted effort to explain the new, current, or “resultant project”. IF there are still enough jobs to go around and all the EB-5 money is accounted for and was spent to create those jobs, THEN conditions should be lifted. Rather than that oddball situation, I think that an EXEMPLAR I-829 should be used as matter of routine. In that it would be helpful to the USCIS adjudicator to get a professionally-prepared (audited by a CPA?), comprehensive, and organized package of supporting documentation, how could USCIS object? I think than anyone who would object to getting a nice, neat, organized filing would also enjoy placing their head in a vice and tightening the screw! Anyway, when there have been changes, great or small or perhaps even none-at-all, I would prefer to see an updated economic impact analysis and rather than call it an “updated business plan”, I think that a “follow-up” or “hindsight” “report of activities” would be really helpful. That is especially true if accompanied by a full set of supporting documents as “corroborating evidence”. That packet of corroborating evidence is something that is needed anyway, even with ZERO changes to the original plans! The RC-affiliated EB-5 investors have to submit evidence to show that the previously stated assumptions have been realized. Please think about it and contact USCIS about it, too! That’s my two-cents, for now! 3 I don’t like that terminology either but since it is what is being used for the I-526, I am using it in order to avoid confusion. That said, I’d call it a Dummy I-829, just like I prefer the term Dummy I-526.
  • 4. Contact: joseph.whalen774@gmail.com (716) 604-4233 or (716) 768-6506 Page 4 About the Author Joseph P. Whalen, Independent EB-5 Consultant, Advocate, Trainer & Advisor 238 Ontario Street | APT. 6 | Buffalo, NY 14207 Phone: (716) 604-4233 or (716) 768-6506 E-mail: joseph.whalen774@gmail.com web http://www.slideshare.net/BigJoe5 or http://eb5info.com/eb5-advisors/34-silver-surfer DISCLAIMER: Work is performed by a non-attorney independent business consultant and de facto paralegal. It is the client's responsibility to have any and all non-attorney work products checked by an attorney. I provide highly- individualized training based on consultation with my clients. I serve Regional Center Principals and their counsel, potential EB-5 investors, immigration attorneys, and project developers. I am not an attorney myself although I have trained numerous attorneys and INS/USCIS adjudicators in complex issues within immigration and nationality law when I was an adjudicator there for many years. I do not prepare forms, write business plans, or create economic analyses. I do review them for clients prior to submission and suggest corrections and/or modifications to run by your attorney and investment advisor. NOTE: I have over a decade of experience as an adjudicator for INS and USCIS and direct EB-5 Regional Center Adjudications experience having been instrumental in reviving, greatly enhancing, and expanding the EB-5 Regional Center Program for USCIS. NAICS Code: 611430 Professional and Management Development Training 2012 NAICS Definition 611430 Professional and Management Development Training This industry comprises establishments primarily engaged in offering an array of short duration courses and seminars for management and professional development. Training for career development may be provided directly to individuals or through employers' training programs; and courses may be customized or modified to meet the special needs of customers. Instruction may be provided in diverse settings, such as the establishment's or client's training facilities, educational institutions, the workplace, or the home, and through diverse means, such as correspondence, television, the Internet, or other electronic and distance-learning methods. The training provided by these establishments may include the use of simulators and simulation methods.